Terms and Conditions
Our standard terms and conditions are as follows:
In this Agreement, unless the context otherwise requires, the following words and expressions have the following meanings:
“Agreement” – this Consultancy Service Agreement including each and every Statement of Work;
“Business Day” – a day other than a Saturday or Sunday when the main clearing banks in the United States are open for a full range of business banking transactions;
“Client” – a person or entity that possesses complete legal capacity to enter into a legally binding and enforceable contract, who contacts or contracts with Company for the purpose of accessing any Services;
“Company” – GHB Services, LLC, dba GHB Intellect, including any and all of its subsidiaries;
“Confidential Information” – any proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed by Client or otherwise received, developed or derived during the performance of the Services, either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment;
“Deliverables” – the outputs from the provision of the Services including those described in any Statement of Work;
“Intellectual Property Rights” – all patents, rights to inventions, utility models, copyright and related rights, trademarks, trade, business and domain names, rights in goodwill and to sue for passing off, rights in design, rights in computer software, database right, moral rights and other intellectual property rights, in each case whether registered or unregistered and including all applications for and all renewals or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world;
“Services” – the services to be provided by the Company as specified in any Statement of Work;
“Statement of Work” – a statement agreed between the Company and the Client from time to time specifying work to be carried out by and deliverables to be provided by the Company.
1.1 Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted, or extended at the relevant time.
1.2 The headings in this Agreement are for convenience only and shall not affect its interpretation.
1.3 Any reference to a clause or Schedule shall be construed as a reference to a clause of or schedule to this Agreement unless expressly stated to the contrary.
1.4 Any reference to a statute or statutory provision is to it as from time to time in force as amended or re-enacted.
1.5 Use of the word “including” is without prejudice to the generality.
- Provision of the Services
The Company shall provide and perform the Services on the terms and conditions of this Agreement and will do so:
2.1 in compliance with all applicable laws, regulations, codes of practice and professional standards of the United States of America and the State of California;
2.2 with reasonable skill and care;
2.3 in accordance with the terms of this Agreement, including the timescales specified in Schedule 1 or any Statement of Work;
2.4 in accordance with good professional practice.
3.1 The Company shall use its reasonable endeavors to ensure that the same personnel provide the Services in order to maintain consistency and build a relationship with the Client.
3.2 The Company shall use its reasonable endeavors to ensure that its personnel comply with the Client’s site regulations when the Company’s personnel are on the Client’s premises.
- Obligations of the Client
4.1 The Client shall provide the Company with such information and access to such facilities and personnel as the Company shall reasonably require in order to provide the Services.
4.2 The Client shall make such decisions and provide such instructions as the Company shall require and at the time that the Company requires to enable the Company to provide the Services.
4.3 The Client acknowledges that the Company’s ability to provide the Services and to meet any timeframe agreed for the provision of the Services is dependent on the Client providing that information and access and providing those decisions and instructions at the times required by the Company.
- Intellectual Property
5.1 Any pre-existing Intellectual Property Rights of either party that are made available for use in connection with the provision of the Services shall remain vested in that party; the other
party shall have a license to use those rights so far as may be necessary to enable that party to provide or to enjoy the benefit of the Services.
5.2 All Intellectual Property Rights that are created in the course of the provision of the Services and in the Deliverables shall belong to the Company; the Client shall have a royalty free, perpetual license to use those rights as envisaged by this Agreement to enable the Client to have the benefit of the Services and the Deliverables for use within the Client’s own business.
6.1 The Company and the Client may, during the course of this Agreement and in connection with the Services, obtain Confidential Information by that other party.
6.2 The receiving party shall:
6.2.1 keep all Confidential Information confidential and not disclose it to any person (save as required by law or as necessary for performance of the Services pursuant to this Agreement); and
6.2.2 use the Confidential Information only for the purpose for which it was provided and for no other purpose.
6.3 At the termination of this Agreement or earlier, upon Client’s written request, Company shall deliver to Client all of Client’s property and Confidential Information in tangible form that Company may have in its possession or control.
6.4 The confidentiality obligations in this clause 6 shall not apply to Confidential Information that:
6.4.1 is documented in business records as having already been in the lawful possession of, or being information already known to, Company before its disclosure by Client;
6.4.2 was in the public domain at the time of disclosure or which, after such disclosure, enters into the public domain through no fault of Company;
6.4.3 was furnished or disclosed to Company by a third party under circumstances where Company believed reasonably and in good faith that such third party was free of any obligation of confidence regarding the Confidential Information; or
6.4.4 was independently developed by or for Company without reference to the Confidential Information disclosed under this Agreement.
7.1 The Company shall charge and the Client shall pay the amounts set out or calculated in accordance with the relevant Statement of Work.
7.2 Where the fees are to be calculated on a time and materials basis, the Company may increase those fees on giving not less than one month’s written notice to the Client.
7.3 Any sums stated in this Agreement (including in any Statement of Work) are expressed exclusive of VAT and all other taxes which, where applicable, will be added and payable by the Client.
7.4 The Client shall, in addition, reimburse the Company for pre-approved expenses including those that are specified in the relevant Statement of Work.
8.1 The Company shall invoice the Client on the basis set out in the relevant Statement of Work or, if payment details are not set out, monthly in arrears.
8.2 The Client shall pay all valid and properly submitted invoices not later than 30 days after they are received or at such other times as may be specified the relevant Statement of Work.
8.3 If the Client does not pay any invoice by the due date for payment the Company may, without prejudice to any other rights and remedies that it may have:
8.3.1 suspend provision of the Services until payment in full including any interest is received; and/or
8.3.2 charge interest on the sum outstanding at the rate set by the Prompt Payment Act pursuant to 5 CFR § 1315.10.
8.4 The Client shall pay all invoices in full without any set-off or deduction.
8.5 Where the Goods or Services provided are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the installments in accordance with these conditions or any claim by the Client in respect of any one or more installment shall not entitle the Client to treat the Contract as a whole as repudiated.
This Agreement shall commence on the date the Client submits a request for Company Services and shall continue in force, subject to early termination in accordance with the next following clause, until terminated by either party giving to the other not less than a one-month notice.
Either party may terminate this Agreement forthwith on notice to the other party if that other party:10.1 provides not less than a one-month notice of termination;
10.2 is in material breach of any of the terms of this Agreement and, where the breach is capable of being remedied, fails to remedy the breach within 20 Business Days of service of notice specifying the breach and requiring it to be remedied;
10.3 has a petition granted for its winding up or has a liquidator, administrator, receiver or administrator appointed in respect of it, enters into an arrangement with its creditors or ceases,
or threatens to cease, trading.
- Consequences of Termination
11.1 Termination under clause 9 or clause 10 may be in respect of any individual Statement of Work or in respect of this Agreement including all Statements of Work.
11.2 On termination of this Agreement for any reason and at the end of the provision of the Services, the Company shall return all property, equipment, documentation, and other things provided to it by the Client in connection with the provision of the Services.
11.3 Termination of this Agreement or any Statement of Work shall not affect any right or remedy which has accrued due at the time of termination.
12.1 In no event shall the Company be individually liable to the Client for any damages for breach of fiduciary duty by third-parties, unless the Company’s act or failure to act involves intentional misconduct, fraud, or a knowing violation of the law.
12.1 The Company shall have no liability to the Client in connection with this Agreement for any loss of profits, loss of revenue, loss of business, loss of contract, loss of goodwill, loss of data or failure to make anticipated savings or any indirect, incidental, special, or consequential loss, whether this results from breach of contract, negligence or otherwise.
12.2 In order for the Client to benefit from the Company’s services, the Client agrees to limit the Company’s liability arising from the Company’s services, errors or omissions, such that the total liability of the Company shall not exceed the Company’s total fees for services rendered for the duration of the Agreement.
- Force Majeure
13.1 The Company shall not have any liability for any failure to perform or delay in performing any of its obligations under this Agreement if and to the extent that such failure or delay is caused by reasons, circumstances or events beyond the Company’s reasonable control.
13.2 If the Company is affected by any circumstance or event of the type described in clause 13.1, that party shall notify the Client as soon as reasonably practicable and the parties shall each use all reasonable endeavors to minimize the impact on the obligations that are affected.
- Personal Agreement
14.1 This Agreement is personal to the Company and the Client and neither of them shall assign any of their rights under this Agreement without the prior written consent of the other.
14.2 The Company may sub-contract part or parts of its obligations under this Agreement but shall remain liable for the performance of those parts that have been sub-contracted.
14.3 No provision of this Agreement will be deemed or construed in any way to result in the creation of any rights or obligations in any person who is not a party to this Agreement.
15.1 The Company and the Client are each independent contractors and nothing contained in this Agreement shall or shall be capable of creating or constituting between them any partnership or joint venture or any relationship of employment or agency.
15.2 The Company shall have no authority to incur any liability or expense on behalf of the Client or to make any promise, representation or commitment that might be binding on the Client without the prior written consent of the Client.
16.1 Any notices that are required under this Agreement shall be in writing and shall be served on the relevant party at its registered office address.
16.2 Notices may be served by:
16.2.1 personal delivery, in which case they shall be deemed to be served when delivered; or
16.2.2 first class pre-paid post, in which case they shall be deemed to be served on the same Business Day of posting.
- Changes, Variations, and Waiver
17.1 If either party wishes to propose a change to the Services or any other provision of this Agreement, that party shall inform the other party of the proposed change and the parties shall
work together to determine whether they are willing and able to agree to the terms that are necessary to implement the change.
17.2 This Agreement may be varied or any right under this Agreement waived only by a written document signed by authorized representatives of both parties.
17.3 If a party does not on any occasion insist on the strict observance or performance of any rights under or of any provision of this Agreement, that will not amount to a waiver of those rights or that provision.
18.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal
18.2 If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
18.3 Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
- Law and Jurisdiction
This Agreement and everything arising in connection with it, including non-contractual matters, shall be governed by the laws of the State of California. Any dispute arising out of this Agreement shall be brought in, and the parties agree and consent to personal and exclusive jurisdiction of and venue in, the state and federal courts within San Diego, California.
- No Legal Service
The Client understands and acknowledges that Company is not a law firm, it does not and will not perform legal services for the Client, and the Company’s services should not be used as a substitute for, a replacement of, or relied upon as, the work of lawyers or a law firm. The Client understands that some intellectual property related services may require the Company or its contractors to review patents and other documents in order to render the Company’s services, but the Company will not be doing that review as a law firm or providing legal advice or opinions.